The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-11-09

There is nothing in the complaint
that Hamilton was not before the Chan
cellor.
1t is not true as argued by counsel
that the subsequent Indictment OF the
parties for murder made a new case so
as to entitle them to another writ of
habeas corpus, and so as to cause their
appeal from the judgment against them
on the first writ to be dismissed by this
court As held in Ee parte, Bride1oelL,
supra, the bar against them continues
after Indictment throughout the cause,
so as to prevent the right to bail on the
state of facts existing when the judg-
ment was given. Their appeal from
that judgment will not be dismissed
because of the indictment, but will be
heard; and if the judgment shall be
reversed, it will be thereby vacated and
no longer be bar to another writ of
habeds corpus.
In Bridewell's case it was claimed that
the judgment granting him bail was con-
elusive in his favor of the right to bail
after Indictment; but this court held
that it was not-that its protective force
in his favor ended when the court of COM
petent jurisdiction took charge of him.
Il ,
but was not conclusive after indictment
for murder, because the conclusiveness
of a judgment in such a habeds corpus
trial depends wholly on the statute, and
it makes the judgment in favor of the
prisoner conclusive only until he shall
be dealt with by a court of competent
jurisdiction
In citing the cases above mentioned,
we would not be understood to approve
all of the language of the opinions
Each case was undoubtedly decided
right. But the language of the opinions
might have been more happily chosen,
as we are now convinced by the thor
ough revision to which our investiga-
ton of this case has led. We are espe-
cially dissatisfied with the announce
ment in Es Parte, Pattis0n, that mis-
trial will furnish ground for a new writ
and the production of new testimony
and the remark about giving jurisdic-
ton is not accurate. 1t is not a ques-
ton of jurisdiction, but of the conclu-
siyeness of the former judgment as a
bar. We are satisfied that the only
thing which can avoid the bar, is some
new state of case which in and of itself
presents a ground for granting bail
without regard to and independent of
the testimony on the first trial. The
circumstance of mistrial might be in
fuential on hearing, but cannot of itself
be held to avoid the bar. In no case
can the testimony on the first trial be
looked to as a factor in the second. 1t
has no place in the second trial.
The language of the opinion in Er
pdrte, Bridel0eH, might well have been
more specific, but applied to the case
before the court cannot be misunder-
stood.
Afirmed.
ARNOLD, j., concurring:
concur in the opinion just read, and
on the main issue involved, say that
1884 of the Code declares that "the
Judgment rendered on the trial of any
writ of hdbeds corpus shall be conclusive
until reversed, and while so in force,
shall be bar to another hGbeGs corpus
in the same cause, or to any other pro-
ceeding to bring the same matter again
in question except by appeal or by action
for false imprisonment; nor shall any
person so discharged be afterwards con-
fined for the same cause, except by a
court of competent jurisdiction"
The effect of this statute is to make
the Judgment on a writ of habeas corpus
bar against another writ based on facts
which were or might properly have
been investigated on the trial in which
the Judgment was rendered. Elk parte
well, 81 Id III; Elk parte Pattison, IS
/ - f.. L.
existed and which were or might have
been litigated on such trial would be
concluded by the judgment; but matters
of fact arising after the rendition of the
judgment, such as unusual and oppressive
delay in the prosecution, or serious
injury to the prisoners health, likely to
prove fatal on account of confinement,
might be investigated on another writ;
for they were not and could not have
been examined on the first writ: and to
investigate them on another writ, would
not be the trial of the same cause, or the
bringing of the same matter in question
again. New evidence as to old facts, or
facts which existed at the time of the
trial on the first writ, would not be sufi-
Gent to avoid the bar of the iudg-
ment on the first writ, or to authorize
the issuance of another writ in the same
cause. The utmost extent to which the
jurisdiction of another writ could be
carried, would be to consider the case Of
the applicant as made by facts which
have actually happened since the trial
on the first writ. This must be the
general rule; but-if the extreme cases
suggested in the argument of counsel
should ever occur, such as indisc utable
proof, discovered after judgment deny
ing bail on habeds corpus, of the party
alleged to have been killed by the
prisoner being alive, / apprehend that
this court or any other court would
consider them 50 exceptional Is to avoid
the bar Of the Judgment denying bail,